SORTING OUT CIVIL JURISDICTION IN INDIAN COUNTRY AFTER PLAINS COMMERCE BANK: STATE COURTS AND THE JUDICIAL SOVEREIGNTY OF THE NAVAJO NATION

The Navajo Context The Navajo Reservation lies within the boundaries of the states of Arizona, New Mexico, and Utah. Because of the Navajo Nation's status as a "domestic dependent nation,"9 that geography creates two overlapping judicial systems within portions of each state. The competition for civil jurisdiction takes on immediacy because sometimes the substantive law rules for the resolution of a given case or controversy may vary depending on which courthouse-state or tribal-issues the final judgment. [...]recently, there was no competition for civil jurisdiction between Navajo courts and state courts. For most of the time since they took up permanent residence on the Navajo Reservation in 1868, the Diné had no viable court system, with civil cases falling by default to the state courts.20 Federal legislation long ago placed Navajo felony criminal cases under the exclusive jurisdiction of the federal courts, with the United States Attorney's office acting as prosecutor, beginning early in the nineteenth century.21 In 1958, about twenty-five years after its modem government began to take shape,22 the Navajo Nation created its first tentative court system, which began to hear and decide civil lawsuits.23 With no opportunity to hear felony criminal matters,24 the tribal courts' civil jurisdiction represented an unexplored landscape, open to development. In 1985, after an initial period of growth, substantial reforms confirmed the Navajo court system in its current form and status, with a permanent Supreme Court and an increasingly active civil calendar.25 The Conundrum of Jurisdictional Overlap Because tribal reservations overlap the same territory as states, but have different rather than equal status within our federal Union, tribal courts cannot always utilize the same minimum-contacts and long-arm analyses that define state court jurisdiction.